Smoke and Mirrors : Big Tobacco on Trial

As an Urban Sketcher, I’ve always been curious about the practice of courtroom sketching. Especially now that cameras are permitted in much of the US and the profession seems to be dying out.

Luckily for Canadians, the decision here whether to allow photography is decided on a case-by-case basis and is pretty much reserved for public inquiries with a significant social or humanitarian issue.

In serious criminal cases and some corporate law, if anyone wants a visual record of events there’s still a need for someone scribbling away with pencil and paper.

I was surprised to learn no special permission is required to sketch. Any member of the public is free to attend and stay as long as they like.

However, no liquids are allowed in the courtroom. This is probably more about spilled coffee than watercolors, but it meant I had to draw in the moment and paint later.

I ended up spending four days making small sketches in pencil and taking them back to the studio to assemble into digital collages. These were printed onto Fabriano 140 pound paper and painted in watercolor, allowing the drawing to show through. (This is my typical solution when I can’t paint on the spot).

Cynthia Callard and colleague blogging the proceedings

So, you might ask, how did I choose this particular trial to sketch?

Initially, I was interested in a high profile murder case, but thinking it over I decided the killer didn’t need any more publicity.

Fortunately, while asking around about the regulations, I met journalist Cynthia Callard. Cynthia has spent the last three years (250+ days in court) observing a set of class actions brought against cigarette manufacturers Rothmans Benson and Hedges, Imperial Tobacco Ltd., and JTI-Macdonald. She has collected everything into a day-by-day narrative on her blog: Eye on the Trials.

It makes fascinating reading. It’s hard to tear yourself away from this epic tale of people unable to limit their addictions. Cigarettes on one hand, and to making money on the other.

Simon Potter representing Rothmans Benson and Hedges

At stake is a record-breaking $27 billion figure that would pay restitution for anyone in Quebec, going back 50 years, who suffered damage to their health from smoking.

This is only the first of these Canadian suits to come to trial. They were filed in 1998 and have taken 13 years to work their way through the system. Other attempts are underway in various provinces, and will likely proceed no matter what is decided here.

The validity of these suits seems pretty clear. On the face of it, things look pretty dark. The plaintiffs assert that:

Tobacco companies planned massive advertising campaigns designed to hook people on their products, even after it was understood that cigarettes were dangerous. They knew people would die, yet they carried on making money.

There is written proof in their own words that instead of choosing to stop killing folks, manufacturers did their best to hide the facts. Including destroying documents containing too much hard truth, and enriching a select group of experts, paid to obfuscate the science for as long as possible.

Worse than that, manufacturers doubled down, focusing new marketing on teens, setting them up for a lifetime of addiction, planning on making profits at the expense of public health for an entire generation.

To say this version of events describes a failure of corporate citizenship seems to be putting it lightly.

However – I only know this second hand. I’ve come in at the very end of this long affair and I didn’t see any of that evidence myself.

All I was actually able to observe, was the summation by the defense team. And I have to say, they are very convincing speakers.

Here is the tobacco companies version as best as I can recall:

Potter, Pratte, and Côté, (studio portraits, from publicity photos)

Ok, we admit now scientists have proven that smoking is addictive and dangerous. But, we couldn’t have known that back when we started this business.

The government said Health Canada would take care of spreading the bad news to smokers. So that wasn’t our job – and in fact, we were initially ordered to stay quiet on the subject of risk, so the message would come from reliable sources.

Also, there are plenty of dangerous products, (like say, motorcycles or ice climbing gear), so that’s why we have a consumer protection act. It wasn’t our decision to give tobacco an exemption under that act – that was the government’s choice. So, it’s democracy to blame, and anyway, if we didn’t sell it, others would.

Besides, tobacco manufacturers operate under a federal license, and as a requirement of that, for years now we have put big, scary, un-missable health warnings on every package – making it very clear you should not buy our products.

Plus, we don’t do any of those evil ads anymore! Haven’t for years. Kids shouldn’t smoke, this is a problem with schools not being strict enough in the ’70s and ’80s, not with us targeting youth.

RBH council Simon Potter argues – why should smokers, who have accepted the risks, be compensated when the risks materialize? People who chose to smoke don’t deserve compensation just as “I don’t deserve compensation because I am overweight.” (Which he is, speaking factually).

I personally felt this argument is tarnished by the uncharitable conclusion it offers. To whit: If you didn’t quit smoking and died from it, it’s your own fault buddy. Everyone else knew, why not you?

Guy Pratte speaking for Imperial Tobacco Ltd

Honestly, I can’t see how the tobacco companies could lose in the short run here. I am just a layman – but it seems, no matter where you fall on the morality of selling tobacco, they are selling a legal product, in a legal way.

Yet – Even if the companies are released from responsibility, doesn’t that mean we are all left with the larger questions?

How can our government continue to license the sale of a product that kills people?

How can the shareholders, managers, and owners of these companies continue to turn a blind eye to the cost of profit?

If the best defense is: “We all agreed in the ’70s that smoking deaths were an acceptable risk” – well – how much longer do we have to put up with that poor choice?

Judge Riordan’s final decision will likely take weeks or even months. And after this, there are certain to be appeals. But I am waiting with great interest to see what develops. Is it possible that this is the first step towards a smoke-free Canada?

Marc, as an attorney for the past 34 years, I can tell you that cameras in the courtroom are one of the worst things ever to happen to the legal system and I much, much prefer courtroom artists, a rare, rare breed indeed. I applaud you and your work and your willingness to do this. And your work is amazing. I was also involved in what we lovingly called the tobacco wars which, in 1998 in the US, resulted in “the Master Settlement Agreement” which is still being argued over in the states. I was on the side of health– the state attorney generals office– and remained involved in various forms and various times up until my retirement last year. It is an absolutely fascinating mess, from all points of view, and I am not sure the legal system– American or Canadian– will ever see the like. But I digress. I love your work (and have some small paintings to prove it) and you have done great justice (pardon… I had to) to the great courtroom illustrators who were there before cameras entered the courtroom. I hope you will continue with courtroom illustration. Kudos again.– Doug Moench

I’m with you on the ambivalences here. My father started smoking in the army in WWII and spent his entire life trying to quit (finally succeeding, only to die of lung cancer a few years later). My great aunt, in the 1960’s, would light up and say, “Another nail in the coffin” (died of a heart attack). People knew, and know, it’s not healthy.
Really, how can you start smoking these days knowing what you are doing to your body? And yet I see kids in their 20’s puffing away outside the local bars…unless you were in the army, stationed in the Mideast, there is no excuse. But can we regulate every risk? I’m not sure we want to.
Great work, both words and illustrations.

What a fascinating event to be documenting. I have often wondered about the challenges of being a courtroom artist (no cameras in UK courts either) so thanks for that insight. Your portraits are fantastic too.

These are fabulous sketches, giving an evocative account of the courtroom.

I’m not one to give the tobacco companies much of a break. However, 50 years seems a long time. I’m not sure when the first research started to demonstrate the harm, but 50 years ago it was not widely publicized. I’m old enough to remember!

I, too, am ambivalent about how much the government should be protecting people from themselves. However, a friend in Sweden gave me a new perspective. Unlike USA, Sweden has a National Health plan. He told me that the government has an interest in whether you wear a motorcycle helmet because, if you are brain damaged due to not wearing one, it is the government, via the taxpayers, who will pay for your care.

I have a technical question: you wrote, “These were printed onto Fabriano 140 pound paper and painted in watercolour”. If you’re using watercolor over a printed page, I’m thinking it’s not standard ink jet printer ink. What do you use?

Dear Marc, I’ve been following your work for some time now and it’s nothing short of excellent!! I do have a technical question though. In these courtroom sketches, it seems as if the scale of the figures is inconsistent. There are figures in the foreground for instance that are smaller than the ones behind. Considering your skill, I’m wondering if this is purposeful.

Hey there – good catch! Yes it’s true. So, partially that just because I drew everyone at different times and from different spots in the room. But it was also a plan from the beginning – so that the central figure, the most important lawyer, would be the largest. Sort of like medieval paintings or Persian scrolls.

Another odd thing about these – one thing I was surprised about – in Canadian courts, unlike what I expected from TV, the presenting speaker stands with their back to you, right in front of the judges night desk and speaks directly to the judge face to face. Everyone else is way off in the wings. Plaintiffs to the left, defense to the right, like a wedding. I’ve moved everyone in closer, so you see all the observers in their little groups.

Dang! You’re start off 2015 strong, this post is awesome! On multiple levels, too. Cool that you sat through an interesting trial, and great that you got some quality sketching out of it too. Taking figure drawing to places most artists today wouldn’t even think of.

Hi Marc these are fantastic. I work in the area of smokefree in New Zealand and read with interest your thoughts on the court case against Big Tobacco. The general public would find your views very refreshing, you should publish this wider. Amazing sketches, such talent!

Yes, the industry’s defense sounds great. In my experience tobacco industry statements almost always sound great. They should. Literally every phrase you hear has been created by top flight PR talent, wordsmithed, focus group tested, vetted by counsel, and coordinated with decades-long strategic positions. You are listening to some very expensive words.

So the industry’s public utterances should sound good. And they do. But what this industry says in private, is very different story. That’s the story told by once-secret memos from tobacco industry executives. This has been damning evidence in this trial. The blog Eye On The Trials provides documents and links (http://tobaccotrial.blogspot.com/) as well as gripping trial testimony that ties it together.

Did the industry find out after everyone else what their product was doing to their customers? Was the industry just doing what the government said? Is the product a danger like any other? Is everyone else responsible for smoking, not the industry that aggressively markets it, engineers it for addiction, and fights to keep it accepted? You and I might be skeptical. But it is the industry’s own words, in private, when they think no one is listening, that makes the case. Without these documents, the industry’s well crafted defense, smooth and reasonable sounding, would probably carry the day. It is the jarring truth of what the industry was saying in private, what it knew and what it was doing, that cannot be so smoothly denied.